People v. Ward

232 A.D.2d 218, 647 N.Y.S.2d 944, 1996 N.Y. App. Div. LEXIS 9952

Opinion

—Judgment, Supreme Court, New York County (Richard Andrias, J.), rendered November 18, 1992, convicting defendant, upon his plea of guilty, of robbery in the second and third degrees, and sentencing him, as a second felony offender, to concurrent terms of 41/2 to 9 years on the robbery in the second degree convictions, to run consecutively to a term of 2 to 4 years on robbery in the third degree conviction, unanimously modified, on the facts, to vacate one of the concurrent 41/2 to 9 year terms, and otherwise affirmed.

The sentencing court’s refusal to hold a hearing in connection with defendant’s challenge to the constitutionality of his prior felony conviction was properly based on the denial of defendant’s CPL 440.10 motion in the prior proceeding raising the precise issue of ineffective assistance of counsel he seeks to raise herein (see, People v Abbott, 178 AD2d 281, 282, lv denied 79 NY2d 918; People v Di Giacomo, 96 AD2d 1127). As the People concede, the court erred in sentencing defendant on two counts of robbery in the second degree, and we modify the sentence accordingly. Concur—Rosenberger, J. P., Ellerin, Williams and Mazzarelli, JJ.